The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Sunday, August 08, 2004

Kranish and Elliott on the phone: a fictional recreation

Reading Will Collier's post on VodkaPundit about the Boston Globe's Mike Kranish and SwiftVet Captain George Elliott{note1}, and some of the comments on that thread, have put me into a speculative mode late at night.

As a lawyer, I deal with facts and evidence. When I practice my profession, I'm bound by canons of ethics, the violation of which can get my license jerked. But hey, here on BeldarBlog, I can also be a pretend-journalist, or a pretend-novelist, or both at the same time! Last I checked, neither of those two occupations required a license.

So what follows, unlike my two priorposts about Captain Elliott and the affidavits, is pure fiction and some parody thrown in to boot. It's purely a creation of my imagination. At best, call it informed speculation — based on having closely re-read both of George Elliott's affidavits and the Globe's "retraction" story. It's also based on 24 years of drafting affidavits; cross-examining many a witness myself; and watching many witnesses cross-examined about such affidavits, and then trying to "rehabilitate" such witnesses. So I'm not saying at all that it did, but just that it could have gone something like this:

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Kranish: Hello, Captain Elliott, Mike Kranish here, Boston Globe. Thanks for taking my call. Now, I want to ask you about this line in your affidavit from July 21st. Have it in front of you, sir? Okay, you said in paragraph 3 on the second page, and I quote, "For example, in connection with his Silver Star, I was never informed that he," meaning John Kerry, "had shot a wounded, fleeing Viet Cong in the back." You with me, sir?

Elliott: Yes, that's correct.

Kranish: Okay, now flip back a page with me sir. You also said, in paragraph 1 on page 1, and I quote, "I am able to swear, as I do hereby swear, that all facts and statements contained in this affidavit are true and correct and within my personal knowledge." See that, sir?

Elliott: Yes, I'm with you.

Kranish: So I need to ask you some questions about that firefight that was the basis for Kerry's Silver Star. I want to know what you personally saw happen, sir.

Elliott: What I personally saw? Well, I wasn't there.

Kranish: Oh. You weren't there. I see. So Captain, my next simple question to you, sir, is how did you see John Kerry shoot that VC in the back, since you weren't there during the fight?

Elliott: Well, I didn't actually see it—

Kranish: But sir, you said that "all facts and statements contained in this affidavit" were "within [your] personal knowledge," didn't you? I just read that to you! That is your signature on the second page, isn't it? Under oath and subject to the penalties of perjury?!?

Kranish: You know what perjury is, Captain? You know how many years people can go to prison for when they commit perjury? You know what kind of trouble perjury is, Captain?

Elliott: Perjury? What? ... But ... Okay, I see where you might have read this, this broad statement on the first page about "personal knowledge," and thought that I was—

Kranish: So did someone pressure you into telling a lie in that affidavit, Captain? Was it Rove? Cheney? Huh? They told you how important it was for political reasons that you say that, or threatened you maybe that someone in your family would get in trouble ....

Elliott: Okay. I see what happened. I see where I went wrong. It was a terrible mistake probably for me to sign the affidavit with those words. I'm the one in trouble here.

Kranish: I'll bet they pressured you to lie, didn't they? C'mon, you can tell me, I'm a reporter, and what you tell me is protected by the First Amendment.

Elliott: No, nobody pressured me to lie, Mr. Kranish.

Kranish: Well, then, why did you lie under oath in that affidavit, Captain? I mean, it's right there in black and white! You said you were there!

Elliott: Oh, my. I — I guess I just didn't read it carefully enough. I'm really sorry, I regret signing it if it gives the impression that I was there during the combat. I read it too fast, maybe. Just too fast .... Now, I know: That's no excuse. But the publishing house lawyer said they were trying to meet a deadline and there were time pressures to get my affidavit finished, and I tried to help him out, but now I wish I'd taken more time to look at it more carefully. Gosh. I should have taken more time to be more careful. I knew it was wrong ... the rush, I mean. In a hurry I signed it and faxed it back. That was a mistake.

Kranish: Well, you said under oath that Kerry shot that poor boy in the back, didn't you!

Elliott: Well, I don't know, I wasn't there. It really doesn't matter whether it was in the front or the back, what matters is—

Kranish: Aha! So do you now think that Kerry shot him in the back, whereas before you didn't think Kerry shot him in the back, based on what you actually saw with your own two eyes and can swear to, Captain?

Elliott: Do I ... ? What, now? Do I still not ... ? Uh, well no, I mean .... I still don't think he shot the guy in the back. Not based on something I saw myself. I never really knew one way or the other, based on what I actually saw with my own eyes, you see. Of course, now, John Kerry admits in that new book that just came out this year — hey, did you say your name is "Kranish"?

Kranish: Captain, are you trying to say you gave him that Silver Star by accident or while you were sleepwalking? Or don't you still think Kerry deserved that Silver Star? Which you did mean to give him on purpose at the time, didn't you? Or did you?

Elliott: Now, wait a minute here. What was your question? Do I — no, of course I wasn't sleepwalking. Do I — I — still think Kerry deserved that Silver Star?

Kranish: Okay, thank you for clearing that up, Captain! We've got what we need.

Elliott: Clearing up ... ? But ... Hey! "Kranish"? Hey, wait a second, didn't you write that new book where Kerry admitted —

CLICK ... buzzzzzzzzzz ....

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Fiction. Purely a creation of my imagination — as plausible as any other set of guesses, unless and until the Globe releases a tape recording.

But thus could the Globe quote the man to make him look like he's a liar who's changing his story. Thus could the Globe insist on Saturday, notwithstanding the second affidavit, that it "stands by its story." (The lines in green are purported quotes lifted directly from the Globe.) Thus could the Globe, in a lawsuit, prove that its quotes were "accurate," each and every word of them — at least within the bounds of a Clintonean concept of accuracy.

Far-fetched?

Naw, I've seen these exact same cross-examination techniques used with live witnesses on the stand and in depositions. First you get the witness to panic, to overreact, to some arguable inconsistency. You harp on it; the panic increases. You mention the p-word. Then, if you can get away with it, your questions get less precise and faster. You ask several at once. You interrupt the witness to break his train of speech and thought. You add confusion to the panic. Throw in some double-negatives. You seize a partial answer, out of context, and dart on to the next question (or accusation). The funny-sad thing is, the more honest the witness is, the better these techniques work! And imagine how much easier it is to get away with it, if you're a reporter doing a phone interview, rather than if you have an opposing lawyer objecting and a judge to decide what's fair! C'mon, folks — you've seen televised news conferences where reporters do exactly this same kind of stuff — haven't you?

Look closely at the second affidavit. Look how much more carefully it handles the subject of Elliott's personal knowledge. Friends and neighbors, I submit to you that the "personal knowledge" language in the first affidavit must have been what Kranish was harping on, because that's what they went to so much trouble to clear up in the second affidavit. To my eye, it was obviously drafted by a seasoned trial lawyer who knows these kinds of tricks.

It's a pity that the first one probably wasn't.

So, gentle readers, my question to you is this: Should I keep my day job? Or try to become the next John Grisham? Or should I try to get a job at the Boston Globe?

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{note1}Elliott is sometimes referred to (for instance in the affidavits) as "Captain," but elsewhere (for instance in the SwiftVets' video from which I grabbed the screencap reproduced in my post below) as "Lieutenant Commander." No Caliban explains:

The short answer appears that he was a Lieutenant Commander at the time of his Swift Boat tour and was later promoted to, and retired as, a Captain.

The confusion is understandable, as the ad itself identifies the Swift Boat Vets with their ranks at the time of their Vietnam tours, including George Elliott as a Lieutenant Commander.

Comments

This is off topic--since I think you've pretty clearly hit the bullseye on the Kranish tactics--but on Tom Maguire's blog one of the commenters mentioned a dishonest reference by Kerry to the deaths in Vietnam under Richard Nixon. I'm going to reproduce my comments there, here (I hope you don't mind). As I think it also gives a good clue about Kerry's character--keeping in mind that Kerry was looking forward to a career in Massachusetts politics in the '70s, the only state to go for McGovern in '72:

---------quoting myself----------
Kelly's point about Kerry's attribution of deaths to Nixon is a good one, and deserves a broader context. Here are the deaths by year in Vietnam:

Nixon didn't take office until 1969, so his policies weren't in place until later in that year. Thus some of '69s should legitimately be LBJ's legacy. Still, Nixon cuts American deaths by 35% in HIS FIRST YEAR, by Vietnamizing the war.

By 1970, Nixon has cut them almost in half from '69, and they're less than a third of what they were in LBJ's last year ('68). This is when Kerry begins his anti-war career! That's right, in the middle of fabulous success in extricating America from JFK_LBJ's war, Kerry is whining.

By '71 it's practically over, but Kerry is still making a name for himself on the Cavett show and elsewhere decrying the horrible and senseless loss of American life. Great judgment, John.

Finally, note that there were only 300 American deaths in 1972. That's the year (in May) GW Bush gives up flying for the ANG. Because the war was almost over, there were now way too many fighter pilots competing for cockpit time. Bush sees the handwriting on the wall, and decides to get on with the next phase of his life; Harvard Business School.
---------endquote--------

Keep in mind, also, that many of the people who were all over the "Bush was AWOL in 1972" thing--Kevin Drum, Brad DeLong among others--are seemingly morally shocked that anyone would question Kerry's behavior in 1968-69, when the war was at its heighth.

Following up on Paul's comment, I'm guessing Kranish didn't introduce himself to Elliott as Michael Kranish of the Kerry-Edwards campaign--the author of "Kerry and Edwards, Their Plans and Promises" and the ghost writer of "Our Plan for America, Stronger at Home, Respected in the World".

All Bush Bullshoot, and george elliot is flipflopping, he gave the star to Kerry and wrote a commendation about him quote" Chris Matthews show August 12, interviewing that nut Hired by the right to bring up the bogus charges, against Kerry, John O Neil, Chris said to him " you seem to be carrying a grudge, for 35 yrs and why NOW bring it up????and Chris reade from a report filed years ago about Kerry in the service and his actions.Chris is a great nonpartisan journalist and he could hardly contain himself while asking John O Neil questions, he could NOT deny Kerry did the rescue, went off into the "bush" after the soldier that was shooting at thie boat, and killed him. I am on the trail of all these men and ordred the book to get their names, and will check up on all of them THEY WERE NOT in the boat and the men who stood behind Kerry at convention WERE IN the boat. These Republicans will stop at nothing, They are not the decent Republicans , they belong to Rove and Bush Cheney,You "bushies" check it all out before you condemn Kerry After your boy has a million excuses why he did not join and go over and Cheney had 5 exemptions !!!

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